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Lord Sewel: My Lords, perhaps I may try to respond to the legitimate points made by the two noble Lords. The noble Lord, Lord Mackay, helpfully used the example of emissions. One can see the ludicrousness of a straight pro-rata allocation if, for example, the stage was reached where there were no coal-burning power stations in Scotland and all of them were in England. There is no point in having a pro-rata allocation on that basis. The Scottish share would be something to be negotiated between UK and Scottish Ministers, taking into account their responsibilities and the proportionate contribution that Scotland and the rest of the United Kingdom make to the problem being tackled. Therefore, there is a strong requirement to reach a sensible accommodation and agreement.

The noble and learned Lord, Lord Fraser of Carmyllie, asks who at the end of the day will be responsible. Under Clause 54, the Secretary of State has powers of intervention. My understanding is that the Secretary of State would act in this way to require Scottish Ministers to accept and implement the quantitative obligations. If I am not correct about that, I will write to the noble Lord in good time. I do not wish to speculate but we all know that "Secretary of State" means any Secretary of State.

On Question, amendment agreed to.

10 p.m.

Clause 100 [Agreed redistribution of functions exercisable by the Scottish Ministers etc.]:

Lord Hardie moved Amendment No. 202B:

Page 46, line 23, at end insert--
("(4) This section does not apply to any retained functions of the Lord Advocate which fall within section 48(6)(a).").

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The noble and learned Lord said: My Lords, in Committee, amendments were brought forward which sought to exclude from the scope of Clause 100 certain functions exercisable by the Lord Advocate. We undertook to consider the matter further and this amendment reflects that further consideration. It provides that the functions exercisable by the Lord Advocate immediately before he ceases to be a Minister of the Crown will not be capable of being transferred to a UK Minister under this clause. This would include functions exercisable by the Lord Advocate in relation to criminal prosecutions and investigations of deaths in Scotland, as well as his law officer functions. As indicated in Committee, we accept that it is inconceivable that such functions should be transferred to a UK Minister and this amendment simply makes the matter clear on the face of the Bill. I beg to move.

Lord Mackay of Drumadoon: My Lords, I welcome the amendment, which reflects the concern expressed in Committee. I can well understand the noble and learned Lord when on this occasion he says that something is inconceivable. However, it is important that it is set out on the face of the Bill and I offer no opposition to the amendment.

On Question, amendment agreed to.

Clause 103 [Regulation of Tweed and Esk fisheries]:

Lord Monro of Langholm moved Amendment No. 203:

Page 47, line 9, at beginning insert ("Subject to subsection (1A),").

The noble Lord said: My Lords, I shall speak also to Amendment No. 228. It relates to Clause 118 and highlights the word "Solway". I apologise to the noble Lord, Lord Mackay of Ardbrecknish, for being absent when he discussed the River Esk in Committee. I wish to deal with some of the points which were discussed in order to see whether the issue is any clearer. We are discussing the future management of the River Esk, or the Border Esk--certainly not the North or South Esk, as some noble Lords mentioned on the previous occasion.

The problem has been that during the past 20 years the North West Water Authority, then the National Rivers Authority and now the Environment Agency, has laid claim to the management of the River Esk right to its source. That means 90 per cent. in Scotland and about 10 per cent. in England. As that 90 per cent. flows through my former constituency I have been intimately involved in arguing the case over the years.

There is some misunderstanding, which was highlighted in the debate, in that for only a short distance is the River Esk the boundary between England and Scotland. It is entirely in Scotland to the junction of the River Liddel and shortly below that the whole river flows through England to the Solway. That is why those three organisations from England claim the management of the whole river from its source to its mouth in the Solway Firth.

The important point is that we must decide who will be in charge of the river. Will it start at the national boundary as the Scottish part will be entirely managed

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by Scotland, as recommended in my amendment, or will there be a joint management of the whole river, which in many ways would be to its benefit?

The problem has been that because the mouth is in England we are not entitled to have a salmon district fisheries board, which in most rivers in Scotland does so much to improve the angling propensities of the rivers through restocking and policing works by the bailiffs. Can the Minister say whether we in Scotland will have total control over the whole river or whether there will be a continuing argument between England and Scotland as to who has the right to manage it? This may seem to be a very parochial point but where I live in Dumfries this river is of immense importance for angling and for many other reasons.

How will this operate from next summer when the authority, I hope, gets control of the river in Scotland and the responsibility for the English part goes to England? And how are we going to look after the financial aspects of managing the river, with or without a district board, and rod licensing for the English or Scottish parts of the river?

On 8th October my noble friend Lord Mackay of Ardbrecknish raised the issue of rod licensing on this river. I have seen the letter in reply from the noble Lord, Lord Sewel, which indicates that consultations had been inconclusive. The letter states:

    "Consequently the present arrangements under the Environment Agency will continue with the issue of rod licences remaining unchanged".
Does the Minister know what the position is at the present time, because it is extremely fluid? The three authorities in England--the water authority, the National Rivers Authority and the Environment Agency--all feel that legally they have the right to charge for rod licensing throughout the Scottish stretches of the river. I visited the chairmen of the two first boards and argued in depth that it would be quite unfair and that the River Esk would be the only river in Scotland to which rod licensing was applicable and that this would be a national disgrace in terms of a serious impost on local anglers. Those two authorities agreed that they would not push their right by legislation to have rod licensing, but it is still in place. I would like to be quite clear tonight that rod licensing will not be charged by an English authority on a length of the river in Scotland, because the legislation does not make it clear what the jurisdiction will be next summer.

To a degree, the problem has been resolved because, due to the removal of rates on fishing in Scotland, the riparian owners have put that money into managing the river, in exchange for not charging rod licences. However, I should like this matter to be cleared up tonight, if possible. A lot of the fishing is extremely inexpensive, as a result of the good work over many years of the two estates, and pensioners and residents fish at remarkably low cost. It would be a great pity if we were to run into an administrative hiccup because of the changeover of jurisdiction from England to the Scottish parliament.

I hope that we will not wait too long for an answer. In the letter to my noble friend Lord Mackay it was stated that any other decision should be deferred until

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the outcome of the ongoing review of English salmon legislation. Heaven knows, that has been permanently on the stocks for years and years, particularly in regard to the North East drift nets. When we get the answer relative to English salmon legislation that will go some way to clearing up the problems of the River Esk.

Lastly, the noble Baroness, Lady Ramsay, spoke at some length on the problem of the Solway Firth. She indicated that the Bill would establish a fixed boundary for the purposes of defining the border between England and Scotland. I wonder whether she has had any further thoughts as to how that is to be done bearing in mind that the centre of the channel is flexible and moves either side of the Solway Firth from year to year and month to month. It will be difficult to define that centre line. Shall we have a series of buoys? We can hardly expect policemen to go out with sextants and theodolites in order to try to decide what is the latitude and longitude of a national boundary in the middle of a firth.

We must try to find a solution because half netting is an extremely important industry and sport on the Solway. It must be policed and it will be impossible to do that if the policemen are unable to find out exactly where is the boundary between England and Scotland. A prosecution may fail because the fisherman will say he was either in England or Scotland. I wonder whether the Minister has had further thoughts as to how the boundary is to be defined in order to bring peace and quiet to what is the sometimes contentious issue of the Solway Firth.

I should be grateful for some further thoughts on how to resolve the difficulty between England and Scotland. At the moment we do not seem to have reached a happy conclusion despite the consultations which have taken place between the fisheries boards. I beg to move.

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